Director of Public Prosecutions v Gower
[2024] VCC 804
•4 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-02426
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GOWER, Kayla |
---
JUDGE: | Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2024 | |
DATE OF RULING: | 4 June 2024 | |
CASE MAY BE CITED AS: | DPP v Gower | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 804 | |
RULING
---
Subject:CRIMINAL LAW - SENTENCE
Catchwords: Arson – Government owned property destroyed by fire – Plea of guilty following sentence indication hearing – General deterrence – Arson objectively serious – Unsophisticated offending – significant consequences to the community – mental health – Hardship on infant in prison – Does not amount to exceptional circumstances
Legislation Cited: Crimes Act 1985;
Cases Cited:DPP v Dennis [2021] VCC 1998; DPP v Atkinson [2020] VCC 1912; DPP v Czaplinski [2020] VCC 747; DPP v Rowley [2020] VCC 43; DPP v Wendell [2019] VCC 1246; DPP v Ramsay [2019] VCC 2025; DPP v Groves [2023] VCC 694; DPP v Tierney [2023] VCC 640; DPP v Meyer [2023] VCC 675; DPP v Keating [2022] VCC 1151; DPP v Rachele [2019] VCC 1189; DPP v Gebbie [2018] VCC 808; DPP v Sadkowski [2016] VCC 1090; DPP v Edwards [2023] VCC 1559; R v Martin [2015] VSCA 248; DPP v Ralph [2004] VSCA 158; Phillips v The Queen [2017] VSCA 131; DPP v Bright [2006] VSCA 17; R v Verdins (2007) 16 VR 269; Markovic v R (2010) 30 VR 589; Borg v The Queen [2020] VSCA 191; Kovacevic v The Queen [2021] VSCA 49.
6AAATwo and a half years imprisonment with a non-parole period of 18 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Teo at Sentence Indication Mr R Casey at Plea | Office of Public Prosecutions |
| For the Accused | Ms S Whittle at Sentence Indication Ms B Kelly at Plea | Law and Advocacy Centre for Women |
HIS HONOUR:
Circumstances of offending[1]
[1] The circumstances of the offending are set out in more detail in Summary of Prosecution Opening for Sentence Indication (27 May 2024). I have also read and considered Written submissions on behalf of Ms Kayla Gower for sentence indication (3 March 2024); Outline of Prosecution Submissions for Sentence Indication (6 March 2024); Plea Submissions on Behalf of Ms Gower (31 May 2024); and all other tendered material.
Kayla Gower, in 2018 you moved to a three bedroom brick house belonging to the Department of Families, Fairness and Housing located at 132 East Road, Seaford.
On 19 January 2022, the Department issued you with a notice to vacate for rent arrears. The Department also informed you that it was considering issuing a further notice to vacate on the basis that the house had been used for serious criminal behaviour, including drug trafficking.
On 28 January 2022 you left the house in your car and went to stay at a friend's home. At around 5:30 pm on 29 January, you returned to the house in a car belonging to a different friend.
While you were inside the house, you started a fire. You then left the house and returned to your friend’s home.
Shortly after you left, several of your neighbours noticed smoke coming from the house and called emergency services.
Your sister called to tell you that the house was on fire. By the time you returned to the house the fire brigade had contained the blaze.
The house was damaged beyond repair and had to be demolished.
Sentence indication hearing
In March 2022 you were charged with one count of arson contrary to ss 197(1) and 197(6) of the Crimes Act 1958. The maximum penalty for this offence is 15 years imprisonment.
On 7 March 2024, I heard your application for a sentence indication. The prosecution submitted that a combination sentence was in range, but that a community correction order (or CCO) by itself would fail to adequately reflect the objective gravity of the offending and your moral culpability. Your counsel submitted that a CCO alone could satisfy the punitive requirements for this type of offending if the right conditions were imposed.
I indicated that were you to enter a plea of guilty, I would not impose a sentence worse than a term of imprisonment (of not more than 12 months) in combination with a CCO. You accepted that indication.
Accordingly, the primary issue I have had to determine in the hearing of your plea is whether the relevant sentencing purposes can be met by the imposition of a CCO on its own, or whether the seriousness of your offending and the need for general deterrence, just punishment and denunciation require me to also impose a term of imprisonment.
Current sentencing practice
In sentencing you, I am required to have regard to current sentencing practice. The prosecution referred me to a number of comparator cases: DPP v Dennis [2021] VCC 1998; DPP v Atkinson [2020] VCC 1912; DPP v Czaplinski [2020] VCC 747; DPP v Rowley [2020] VCC 43; DPP v Wendell [2019] VCC 1246; and DPP v Ramsay [2019] VCC 2025. The defence also referred me to a number of cases: DPP v Groves [2023] VCC 694; DPP v Tierney [2023] VCC 640; DPP v Meyer [2023] VCC 675; DPP v Keating [2022] VCC 1151; DPP v Rachele [2019] VCC 1189; DPP v Gebbie [2018] VCC 808; and DPP v Sadkowski [2016] VCC 1090. The court referred the parties to DPP v Edwards [2023] VCC 1559.
I have had regard to all of these decisions. Of course, every case is different, and current sentencing practice is neither a controlling factor nor a yardstick. Nevertheless, what I take from these decisions is that:
a.General deterrence is a very important sentencing consideration for the offence of arson. Just punishment and denunciation are also important considerations.
b.Arsonists can ordinarily expect a significant period of imprisonment (for example, Czaplinski, Rowley and Wendell).[2]
c.A combination sentence may be appropriate where the offending is less objectively serious and there are substantial mitigating factors (for example, Dennis, Atkinson and Ramsay).
d.A CCO on its own[3] can be appropriate if these mitigating factors are particularly powerful, such as:
i.A very early plea of guilty and genuine remorse (for example, Groves, Tierney, Rachele, Keating, Gebbie and Sadkowski); and/or
ii.Significantly reduced moral culpability in line with Verdins (for example, Tierney, Meyer and Rachele).
e.However, a term of imprisonment (in combination with a CCO) may still be considered necessary even in cases where the mitigating factors are so powerful (for example, Edwards).
[2] R v Martin [2015] VSCA 248 at [26].
[3] Groves and Gebbie were technically combination sentences, but the imprisonment components of the sentences were just the pre-sentence detention of 26 and 11 days respectively.
Objective seriousness and moral culpability
Arson is an objectively serious crime. This is because it creates a risk to nearby people and property and to the emergency services workers whose job it is to bring a fire under control. The objective seriousness of the offending is ordinarily determined by reference to the following factors:[4]
a.The extent of premeditation;
b.The extent of damage caused;
c.The threat posed to any occupants or neighbours;
d.The impact on immediate victims;
e.The method by which the arson is accomplished; and
f.Motive.
[4] See DPP v Ralph [2004] VSCA 158, [12]; Phillips v The Queen [2017] VSCA 131, [63]; and DPP v Bright [2006] VSCA 17, [15].
Your counsel submitted that the method you used to set the house on fire was unsophisticated and suggested a lack of premeditation. I accept this. Your method was nevertheless, effective: you destroyed the house.
One of the main consequences of your actions is that there is one less house available for vulnerable families from the long waiting lists for public housing. The cost of replacing the house is estimated to be $330,000. This is a significant cost to the public.
The house was unoccupied at the time of the fire, and there appears to have been little risk of the fire spreading to adjoining properties.
Your motive for lighting the fire is unclear. However, there is no suggestion that you stood to gain any form of benefit from committing the offence.
I find that your offending is at the middle to lower-middle range of seriousness for this offence.
You have longstanding mental health issues, including diaganoses of PTSD, anxiety and depression. These have been complicated by your substance abuse. [5] On the day of the offence, your mental health conditions combined with your drug use to impair your judgment and ability to make calm and reasoned decisions. This heightened your impulsivity.[6] Your mental health conditions thus contributed to your offending (albeit in combination with your drug use), and reduce your moral culpability to some extent.[7]
[5] Dr Rahan Darjee, Forensic Psychiatric Report (26 February 2024), [66]-[67].
[6] Forensic Psychiatric Report (26 February 2024), [74]-[76].
[7] R v Verdins (2007) 16 VR 269, limb 1. During oral submissions I asked counsel whether the fact that Dr Darjee considered that Ms Gower’s mental health conditions and the intoxication were both necessary for her offending disqualified her from reliance on limb 1 of Verdins. Neither counsel were able to refer me to any authority on that issue, so I have proceeded on the basis that this does not disqualify her.
Personal circumstances and other subjective matters
You were born in 1989, the second of four sisters. You have had generally good relationships with both your parents. You also have positive relationships with your two younger sisters.
You yourself have five children, from several different relationships, some of which involved family violence. You have suffered from mental illness and drug abuse. These have resulted in you losing custody of your four older children. Your oldest daughter, Dakota, now lives with one of your sisters. Your next two children, Emma and Alexis, live with their father. Your fourth child, Nikita, lives with her father. You now have regular contact with Dakota and Nikita.
You have a limited criminal history, involving drug, dishonesty, driving and bail-related offences, but not arson. I find that there is only limited need for specific deterrence.
You have recently formed a new, and much more positive, relationship with your partner Trent, and gave birth to a son James in December 2023. In the event that you are incarcerated, you have received conditional approval to take James into prison with you under the Living with Mum Program.
I accept that if you go to prison this will impose some hardship on James, whether or not he accompanies you. This hardship will arise from, among other things,[8] the normal conditions and rules that apply to the program, and from the fact that James has been exclusively breastfed and sleeps with you.
[8] See matters set out in Plea Submissions on Behalf of Ms Gower (31 May 2024), [12]-[33], and discussion during oral argument.
For example, if James goes with you into prison, the fact that you have chosen to breastfeed him will limit the ability of others to help you care for him and for James to leave the prison to spend extended periods of time with other family members; on the other hand, if James does not go in with you, or leaves the prison for whatever reason, he will no longer be able to be exclusively breastfed.
Although I recognise that your incarceration would cause some hardship to James, I am not satisfied that this hardship amounts to exceptional circumstances such as would justify the exercise of mercy.[9] However, even if I did think that the circumstances were exceptional, I would not have held that this necessarily ruled out a combination sentence. [10]
[9] Markovic v R (2010) 30 VR 589. In Borg v The Queen [2020] VSCA 191, [49] the fact a child was breastfed formed part of what the Court of Appeal considered to be exceptional circumstances; however, additional hardship arose from the fact that the appellant’s other child would be exposed to the influence of her abusive husband.
[10] In Kovacevic v The Queen [2021] VSCA 49, [5], the sentencing judge accepted that the entry of the applicant’s two-year old into the prison system to reside with her, during the COVID-19 pandemic, constituted an exceptional circumstance; however, Kaye JA, nevertheless declined to find that the sentence of 12 months’ imprisonment together with a CCO was manifestly excessive.
Your mental health has improved in recent months. [11] This makes you a better vehicle for general and specific deterrence than you were at the time of the offending; nevertheless I accept that both general and specific deterrence should be moderated as sentencing purposes.[12] Your mental health issues also mean that a sentence of imprisonment will weigh more heavily on you and that there is a high risk that it could have an adverse effect on your mental health.[13]
[11] Forensic Psychiatric Report (26 February 2024), [70].
[12] R v Verdins (2007) 16 VR 269, limbs 3 and 4.
[13] R v Verdins (2007) 16 VR 269, limbs 5 and 6.
I also take into account that prison may weigh more heavily on you as a result of the fact that you identify as Aboriginal.
You have struggled to take responsibility for your actions. Although you made partial admissions to the police when interviewed, you denied having lit the fire. Nevertheless, you have ultimately pleaded guilty, albeit after a contested committal and a sentence indication hearing. The prospect of a prison sentence has been hanging over your head since you were charged. I take that into account.
Despite its lateness, your plea of guilty has saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. This is particularly important at a time when the courts are still dealing with the after-effects of the COVID-19 pandemic. I accept that your plea is also demonstrative of a degree of remorse. I will reduce your sentence because of it. If you had not pleaded guilty, I would have sentenced you to a period of two and a half years imprisonment with a non-parole period of 18 months.
Your family, including your new family with Trent and James, provides strong protective factors for your rehabilitation. Your sisters Casey and Tara, and partner Trent have all written letters to the court saying that you have started on the process of recovery and getting your life back together, and they are concerned that a period of imprisonment would set back your rehabilitation. Dr Darjee confirms that this is a significant risk. [14]
[14] Forensic Psychiatric Report (26 February 2024), [83]-[84].
Burning down a public house is extremely serious offending, and the need for general deterrence, just punishment and denunciation all weigh in favour of a period of imprisonment. However, you are making steady but still fragile progress towards rehabilitation, and there is a risk of that progress being reversed by imprisonment. For that reason, I have decided to impose a CCO without a period of imprisonment. That means that the CCO will have to serve all of the purposes of sentencing, including punishment and rehabilitation. The CCO (with conviction) will therefore include a significant community work condition, and supervision and treatment conditions.
Consent to a CCO
Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a term of imprisonment. I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent. The CCO I intend to impose will be of three years duration. The following core conditions apply to all CCOs:
a.You must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment.
b.You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
c.You must report to a Community Corrections centre within two clear working days from today. You will be reporting to Rosebud Justice Service Centre.
d.You must notify a corrections officer of any change of address or employment within two clear working days after that change.
e.You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
f.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
I intend to impose the further conditions that:
a.You must perform 300 hours of unpaid community work as directed by the Regional Manager. Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as unpaid community work.
b.You will be under the supervision of a Community Corrections Officer.
c.You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
d.You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
e.You must participate in programs and/or courses that address factors relating to your offending as directed by the Regional Manager.
If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offence which is currently before me. That might include imposing a term of imprisonment. I will make an order that any breach by you of this CCO be brought back before me.
Do you consent to the imposition of a community correction order? [Yes].
Orders
I make the following orders: on the charge of arson, I convict you and impose a community correction order of three years duration.
0
22
0